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Evan Whitton
3 October, 2006  
Cutting and pasting

While Chief Justice Spiggsy Spigelman bemoans the awfulness of judicial performance indicators, Evan Whitton helpfully provides to the Productivity Commission five measurable ingredients it could apply in the assessment of court effectiveness

Terrifying news for politicians and others who swear under oath: “I don’t recall.”

In the NSW Supreme Court on September 25, Justice Robert McDougall sent down Christopher John Walker for six months for contempt of an inquiry because he had “falsely asserted an inability to recollect” an event.

Perhaps O.K. Cole will recommend a similar encouraging dose for a few witnesses at the Saddam bribes inquiry?

* * *

imageIn The Librarian (Nation Books, 2005), a satire on how whacko right organised criminals – is that a tautology? – go about stealing a US presidential election, Larry Beinhart (snap) says:

“Journalism is not about thinking things through; it’s about cutting and pasting press releases and quotes.”

There is a lot of truth in that. For example, George knows he can generally lie with impunity, and those reporting Jackie’s endless babble rarely give him the yellow THIS IS BULLSHIT card.

But perhaps we can sneakily shift the goalposts with a couple of questions. Do judges think things through? Or do they just cut and paste drivel uttered by their predecessors?

* * *

imageSpigelman CJ (NSW) was not his usual sunny self at the Australian Institute of Judicial Administration’s annual conference (Adelaide, September 16). He said:

“Over eight years ago I became aware of a range of proposals for performance measurement of courts … Furthermore, statutory tribunals responsible for judicial salary determination were indicating an interest in linking salaries to performance. I regarded these developments as a challenge to judicial independence and potentially corrosive of the rule of law … there are significant areas of public decision-making, and the law is one of them, in which there is no measurable indicator of quality.”

The Productivity Commission, which is supposed to measure – corrosively or otherwise – court performance, says in its 2006 report: “An overarching aim [of the legal system] is to ensure that the community has access to a fair system of justice.”

Is that so? But, the report says: “Specific equity indicators are yet to be developed for criminal justice.”

Anxious as ever to render what feeble assistance we may, I sent a few KPIs – Harvard MBA-speak for Key Performance Indicators – to the relevant member of the commission, Mr Lawrence McDonald.

“Dear Mr McDonald,

I believe there are at least five measurable indicators which affect court performance. You might care to consider these tentative assessments on a scale of 10, and how changes might affect the assessments.

Training. Judges are not trained as judges. 4/10? If trained separately from lawyers, 8/10?

Fairness. Fairness is truth. The court system we inherited once accepted that, but not since about 500 AD. 0/10? If courts reverted to seeking the truth, 8/10?

Management. Judges once managed the process but began to allow people famously economical with the truth, i.e. lawyers, to take control of the process a little more than 500 years ago. Courts are thus at the mercy of whatever ‘facts’ lawyers choose to put before them, and the length of time the lawyers want to take. 3/10? If trained judges reverted to managing the process, 8/10?

Accuracy. It is accepted that 99 per cent of accused are guilty, but a score of anti-truth mechanisms, most invented since lawyers got control of the criminal process, ensure that more than 50 per cent of major criminals escape justice. There is a statistic which suggests that some 75 per cent escape when judges sit without a jury. 4/10? If the anti-truth mechanisms were removed, 9/10? as in the continental system, where judges are trained and there are no anti-truth mechanisms.

Appellate decisions. These are famously a lottery, possibly because all involved are trained as lawyers rather than judges. An overturned magistrate might thus really be right and the High Court wrong. The incidence of reversals might thus not be a useful indicator of court performance. 5/10? Again, if judges were trained, 8/10?

Those admittedly arbitrary guesses add up to a fairly dismal 16/50, a productivity rate of 32 per cent. The changes suggested would result in a sharp improvement in court performance to a possible 41/50 or 82 per cent.

Judges who at least nominally preside over the court system get around $6,000 a week. Perhaps the above estimates should be passed on to the Remuneration Tribunal.

I should say that supporting data, mostly from lawyers and judges, for assertions above can be found in my little handbook, Serial Liars: How Lawyers Get the Money. If you would like to see a copy of the ebook, I would be happy to supply it.”

* * *

imageWearing my other hat – Rugby correspondent of this eminent organ – I noted in the September 20 issue that a barrister had said that the pairing of Harry Wells and Reg Gasnier was a classic example of the merit of playing the crash ball chap at inside centre and the creative guy outside.

I could not mention his name because he was incommunicado in Mongolia. Now returned, he has kindly authorised me to make the disclosure. He is C. P. (Charlie) Crittle (seen here). With the great leaper, R. J. Heming, he made up perhaps Australia’s most formidable second row combo 1962-67, and was later President of the Australian Rugby Football Union.


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